3 July 2003
COMMISSION ON HUMAN RIGHTS
Sub-Commission on the Promotion and
Protection of Human Rights
Fifty-fifth session
Item 3 of the provisional agenda
Written statement submitted by Minnesota Advocates for Human Rights
1. Between 1980 and 2000, Peru experienced violent internal conflict that resulted in more than 5,000 disappeared persons, 30,000 killed and 600,000 internally displaced persons. Thousands more were imprisoned and tortured. The Sendero Luminso and Tupac Amaru Revolutionary Movement (MRTA) armed insurgent groups, as well as the Peruvian government, were directly responsible for serious and widespread human rights abuses during this period of political violence, which ended in 2000 when President Alberto Fujimori fled the country.
2. Now Peru faces both a tremendous challenge and an historical opportunity for national reconciliation. To this end, a Truth and Reconciliation Commission (Commission) was created by presidential decree in 2001 to investigate, clarify and assign responsibility for human rights violations committed between 1980 and 2000.
3. In November 2002, a delegation of 10 attorneys from Minnesota Advocates for Human Rights traveled to Peru to participate as international observers in the Truth and Reconciliation Commission process. The team conducted fact-finding, including individual interviews with victims, witnesses, legal advocates, human rights organizations and mental health professionals, Commissioners, Commission staff members, judges (both sitting and former), prosecutors, and police. The team visited Castro Castro and Chorrillos prisons and a torture treatment center. Two team members also went on to observe the Commission-sponsored exhumation of mass grave sites in Lucanamarca and Huancasancos.
4. Minnesota Advocates submitted a preliminary report and recommendations to the Commission in May of 2003. Minnesota Advocates’ full report on the truth and reconciliation commission process in Peru will be published after the Commission completes its work in August. This written statement to the Sub-Commission briefly summarizes some of our findings and recommendations that are pertinent to the administration of justice generally and to the work of other Truth and Reconciliation Commissions.
5. In general, Commission members and staff have worked diligently to address the Commission’s mandate, involve all interested parties in the truth and reconciliation process and complete the Commission’s work in a comprehensive and timely manner. The Commission has amassed an extraordinary amount of information since it began its work in late 2001. Its January 2003 mid-term report shows that the Commission has conducted numerous public hearings and workshops, collected more than 13,000 testimonies, analyzed human rights violations, initiated a campaign on disappeared persons and advanced significantly towards understanding the causes of the violence and formulating ideas for reparations and institutional reforms.
6. The Commission has also conducted exhumations of mass graves at Chuschi, Totos and Lucanamarca and written full reports regarding the facts and events surrounding these extrajudicial killings. In addition, the Commission recently submitted a report to the Public Ministry specifically denouncing particular military officials as responsible for the deaths in Totos. The Commission has asked the Public Ministry to initiate criminal proceedings against those responsible for the crimes in Totos.
7. The success of the Peruvian Commission can be partly attributed to the fact that civil society organizations are playing an unprecedented role in supporting the work of the Commission.
8. It has been well documented that during the years under investigation by the Commission, the use of torture and cruel, inhuman and degrading punishment was both systematic and widespread. Minnesota Advocates heard from many interviewees about their direct experiences with torture. Both current and former public officials stated that the practice of torture was one of the primary stumbling blocks to a fundamentally fair legal and judicial system in Peru.
9. At least two elements of the Peruvian criminal justice system acted as an open invitation for authorities to practice torture routinely throughout the 20 years of political violence in Peru: (i) the extensive use of incommunicado detention without judicial oversight or access to legal counsel, particularly in cases involving terrorism or treason charges; and (ii) the judiciary's acceptance of forced confessions as admissible evidence.
10. The anti-terrorism laws passed by executive decree in 1992 fostered this abuse because the laws allowed police to detain a suspect -- unilaterally and without an arrest warrant, -- to hold the suspect incommunicado for up to 10 days, or for up to 15 days in cases of terrorism-related treason, all without a judge's authorization. Further, the practice persisted because a climate of impunity existed in Peru. Victims were often harassed and intimidated into dropping charges, and the accused were not suspended from duty pending the investigation and sometimes were even transferred or promoted to a higher rank.
11. We recommend that before the Commission's mandate ends in August of 2003, it should reschedule any individual, thematic, or institutional hearings that it cancelled previously. The Commission should make every effort possible to foster public dialogue about the history of violence in Peru and about the Commission's work.
12. Minnesota Advocates also recommends the following regarding the campaign to register disappeared persons: the time frame should be extended for collecting information from remote areas and earmark specific funding to assist NGOs in traveling to remote areas to collect the information. The Commission should work with the ICRC to ensure that data collected are carefully managed and used to inform families and to clarify the fate of missing people. Missing persons should be accorded an effective legal status, such as "forcibly disappeared person," that is the legal equivalent to death so that family members may process official paperwork, obtain state support, remarry and protect property rights and inheritances. The Commission should recommend that there be an official inquiry into the cause of each disappearance before an impartial authority and that each alleged perpetrator is brought before a civilian court for prosecution and trial.
13. Minnesota Advocates also recommends that the Commission make specific recommendations to the Peruvian government as to how its final report and recommendations should be implemented. The experience of previous truth commissions shows the importance of this step. At a minimum, the Commission should recommend that the Peruvian government establish, through legislation, a foundation or organization that will coordinate, execute and promote whatever actions are necessary to carry out the Commission's final recommendations.
14. All detainees and prisoners must be kept in officially recognized centers, strict records must be kept on their whereabouts and regular, unrestricted access to these facilities must be granted to family, legal counsel and non-governmental organizations so that the status and condition of detainees and prisoners may be monitored. Legal mechanisms should be put in place for individuals or groups to seek effective judicial protection from extrajudicial execution, particularly for those people receiving death threats.
15. To ensure that law enforcement officers do not use excessive force that could result in arbitrary execution, every law enforcement agency must have regulations in place that strictly limit the use of force and firearms to exceptional circumstances where no other means are effective or their use is necessary to protect the safety and life of the law enforcement officer. If the use of force or firearms is necessary, law enforcement officers must exercise restraint, minimize damage and injury, ensure that immediate medical assistance is provided to injured persons and notify relatives promptly.
16. If a death occurs while in law enforcement custody, a qualified and impartial physician or forensic pathologist must conduct an autopsy and have access to all investigative data. Policies and procedures must be in place to conduct thorough, prompt and impartial investigations to determine the time of death and whether the death was from natural or accidental causes, a suicide or a homicide.
17. More than 400 mass graves are known to exist in Peru. Minnesota Advocates recommends the following regarding future exhumations: a special independent investigatory commission should be appointed to conduct exhumations in cases where the government is implicated in the death under investigation and cannot conduct an objective and impartial investigation. Officials conducting forensic analysis of skeletal remains must be able to function impartially and independently of any potentially implicated persons, organizations or entities. Immediately upon identification of a mass grave, access to the site should be restricted to authorized persons only, and a guard should be posted 24 hours per day to protect potential evidence from being tampered with or destroyed.
18. Local prosecutors and police involved in the investigation and prosecution of extrajudicial, arbitrary or summary executions should be provided specialized training in forensic evidentiary analysis, autopsies, evidentiary burdens of proof and international standards governing the protocol for exhuming and analyzing skeletal remains.
19. Family members should be accompanied and counseled by mental health professionals throughout all aspects of the exhumation process, and family members' religious needs should be taken into account. Family members should also be provided with a detailed explanation of what will occur during the forensic analysis and the likelihood that individual remains will be returned to family members for burial.
20. An independent and impartial commission should be established to oversee future exhumations after the Commission's mandate ends.
22. To assure the protection of human rights in Peru, we call upon the government of Peru to make every effort to implement the recommendations made by the Commission in its final report, particularly as they relate to institutional reform and reparations for victims.
23. Further, we call upon the government to ensure that the important work of truth and reconciliation is carried on after the Commission’s mandate ends.
24. We have made several other findings and recommendations concerning the Peruvian Truth and Reconciliation Commission. For a copy of our public report once it is released later in August, please contact www.mnadvocates.org.